### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs A ugust 6, 2002
STATE OF TENNESSEE v. VINCENT HO WARD
Direct Appeal from the Criminal Court for Shelby County Nos. 99-04351, -52 J. C. McLin, Judge

No. W2001-01904-CCA-R3-CD - Filed April 11, 2003

The defenda

nt appea ls his convictions of

first deg ree felony

murder a

nd espec ially

aggrava ted
ro bb er y. He received a

life sentence for the first degr ee felony murder conviction and an additional twenty-one

year se ntence for his especially

aggravated

robbery c onviction. The defendant contends the evide nce is ins ufficie

nt to sustain his convi ctions. The defendant also argues his twenty -oneyear sentence for

especially a

ggravated robber

y is excessive. The defendant alleges the trial cour t misapplied enhancement factors (1), (8), ( 13), and (16) and erred i n fin ding him a dangerous offender to support its consecutive sentence determination. We affirm the convictions, but remove the presumption of correctness due to the misapplication of four enha ncement factors and remand fo r a ne w s en te nc in g h ea ri ng on th e e sp ec ia ll y ag gr av at ed ro bb er y co nv ic ti on on ly. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nts of the Cr

iminal Co

urt Affirm

ed and Remande

d for Resentencing

J OHN E V ERE TT W IL LI AMS , J., delivered the opinion of the court, in which J OSEPH M. T I PTON an d T HOM AS T. W OODA LL , JJ., joined.

A C Wharton, Jr., District Public Defender; W. Mark Ward, Robert Felkner, and Ga rland Ergüden, Assistant Public Defenders, for the appellant, Vincent Howar d.

Paul G. Summers, Attorney Gene ral and Rep ort er; Je nni fer L. Bledsoe , Assistan t Attorne y General ; William L. Gibbons , District Attorney Gene ral; and Patience R. Branham, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION On April 22, 1999, a Shelby County Grand Jury

returned a two-count indictment charging the defendant, Vincent Howard, with (1) first deg ree felony murder and (2) first degree premeditated murder. In a related, but separ ate, indi ctment, th

e Grand Jury charg ed the de

fendant with espe cially aggravated

robbery. The

defendant was tried

an d f ou nd gu il ty b y a

jury of first deg

ree felony murder and the underlying

felony of e specially ag gravat ed robbe ry. The de fendant was sentenced to life-2-

imprisonmentfor his felony murde r conviction and twenty- one yea rs for his especially

aggravated robbery convicti on, to be se

rved con secutive

to his li fe sentence . In this appeal, the defenda nt contends the evide

nce is ins ufficie

nt to sust ain his c onvictions, his sentence is excessive, and he should not be deemed a dangerous offe nder.

Facts

Ja cl yn Mar ie D unl ap, an e mp lo yee o f Ze ke’ s Lo unge, testified she was not working on January 13, 1999. She went t

o Zeke’s Lounge to visit the victim, a fellow employ ee, to talk about
an argument she and her husband wer e having that night. She stated she and the victim were the only people in the bar, and she swept the floors while the victim stocked a cooler. She said that sometime after midnight she heard a scre am and saw men enter the lounge. She crouched behind the bar and could see that the taller perpetrator wore a ski mask and pointed a .22 rifle with a black barrel at the victim . She said t

he man sho

uted at the victim

to turn over all the money. She sa id she heard a bell sound as the victim took money from the r egister and handed it to the man holding the rifle. She said she noticed the other perpetrator did n ot wear a ski mask, wa s shorter than his accomplice, and had a lighter complexion. She said the shorter man ran about screaming f or the victim to give him all the money. She state d the men would not leave a fter the victim handed over the four hundred dollars ($400.00) contained in the lounge’ s register. She stated she began to scream at the men to leave since the victim gave them the money

. She s aid the victim came toward her when she began to scream and moved the man’ s gun barrel with his arm. She said she then heard two shots, the victim fell, gasping for air. She said the men were knocking bar stools down and fired another shot. She said she did not hear the men leave, but she crawled to the phone to call 911. She stated the police arrived as she spoke with the 911 operator

. On cross-examination, Ms. Dunlap testified the men entered the front door of the loun ge because the ot her do ors to the lo unge were locked. She said th e men ent ered the lounge with their guns drawn. She stated she was crouched behind the ba r, but she could see what

was going on

from behind a video ma

chine on t

he bar c ounter. Sh

e said the

shorter man had a

small pisto l th a t resembled

a .38. She said she was not sure which man fired his gun and that she heard the shots as she and the victim fell to the floor. She said that because the barrel

of the rifle stay ed pointed toward him, the victim

hit the barrel to move it out of his way. She sa id she was unable to identify the man wearing the ski mask.

Officer Edward Vidulich of the Memphis Police Department tes tified t hat on January 13, 1999, he was the first officer on the scene a fter receiving a call concer

ning a robbery

and a shooting at Zeke’s Lounge. He stated he walked throug h the d oor of the lounge and found Ms. Dunlap
screa ming that the victim had been shot. He said he walked to the side of the bar a nd found th e victim, unresponsive, lying on the ground. He stated the victim did not have a weapon, although he had personal knowledge that the owner of the lounge kept a black Derring er gun by the cash drawer. Police f ound t he derr

inger u nder a c igare

tte machine, adja

cent to a beer co oler. On

crossexamination, Officer Vidulich testified he was the office r who entered the lounge while Ms. Dunlap spoke with the 911 operator.-3-

Officer Shan Alle

n Tracy of the Me mphis Police

Departm ent testif ied he re sponded to

a call at Zeke’s Bar

on January

13, 1999, a s a membe

r of the c rimescene unit. He stated the crime scene
was secure

upon his arrival, and the victim had been transported. He sa id he created a crime scene diagram which reflected the me asurements of the lounge and its backwar d L-shape. He

stated his diagram reflected the overturned bar stools, the victim’s blue shirt, a .22 caliber casing , a bullet

hole in the cooler, a two-shot Derringer , and blood smears. He said a bullet fragment was recovered from the cooler, and a .22

caliber casing was f ou nd on the floor. He stated the Derringer found at the crime scene had not been fired. He said the De rringer’s safety

was still on , and it wa s loaded with two rounds. He stated

he photographed the crime scene and secured all of the evidence. He said he recove red a ski mask and hooded shir

t from a va

cant woo ded lot loc ated le ss than a m i le from Zeke’s Lounge on the day following the crime. The prosecution asked Officer Tracy

to identify

the aforementioned

evidenc e by

showing him crime

scene photos and entered the photos into evidence upon the completion of his testimony. The pros ecution a lso asked Office r Tracy to identify a spent .22 bull et and cloth ing. Officer Tracy recognized the spent bullet as one collected from the

crime
scene and ident

ified a sk i mask and hooded shirt found in the wooded area outside of Zeke’s L

ounge. The pr osecutio n entere d the spen t bullet and clothing

into evide

nce. Of ficer T racy testified t o engaging in the collecti on of evid

ence fr om the cr ime scene. He stated he photographe d, measured, and sealed the evidence. He stated that he placed the evidence into envelopes and tag ged it before taking it to the polic e proper

ty r oom. On cr

oss-examin ation, he

testifie d he was n ot the fir st officer on the scene, and police were inside and outside the lounge on the nig ht of the incident. He stated the crime scene was secure whe n he photographed and sketched the c rime scene. Dorothy Jean McRoberts, the victim’s sister-in-law, testified she had known her husband’s brother for twen ty yea rs. She testified that the victim, Richard McRoberts, was known as Ricky Mack. She stated she last saw the victim at his hom e a wee k before his death and recei ved a ca ll later that he had been shot. Sergeant James Ryall of the Memphis Police Department testified that he a ssisted Sergeant Shemwell with his investigation of

the January

13, 1999, shooting and robbery at Zeke’s L

ounge. He stated he interviewed the defenda nt withSergeant Greg Quinn. He said the defendant was advised of his rights before que stioning. He said the defendant, in his first interview, told the officers a story

that did not match information they had been given, which placed the defendant at the crime sc ene. He

said the f

irst interview was not reduced to a formal statement bec ause the defendant became agitated. On cross-e xamination, Sergeant Ryall re iterated his testimony that the defendant did not seem to have any pr oblems reading or understanding his rig hts. He stated the defendant said he understood his rights and signed the rig hts form. He said the defenda nt’ s statement had been ty

ped. Sergeant Ryall testified that during two inter views with the defenda

nt, the defendant

read his rights and seemed to understand what was asked of him. Sergeant Ry all read the defendant’s statement given o n January 16, 1999, t

o the jury . The def

endant’ s stateme

nt contai ned his o w n admissions regarding his involvement in the crime. The de fendant stated he wore a ski mask and staked out Zeke’s Loung e with his accomplice, Trell. He stated that Trell fired a .38 pistol, and he-4-

fireda semiau

tomati c .22 rifle loaded with two bullets. The defendant also stated that he robbed Zeke’s L ounge to help Trell’s mother pay her bills and to have “a little pocket change.”

Officer Alvin Peppers of the Memphis Police Department testified he received a c all on January 13, 1999, to procure homicide e vidence from the morgue. He stated he collected and secured a full set of prints a

nd a bulle t frag ment from

the victim . He said

he coll ected the bullet fragment and took it to the property and evidence room where it was logg ed in and preserved. Sergeant Robert Shemwell of

the Memphis Police Department testified he was assigned as the lead investigator of the robbery and homicide occurring at Zeke’s Lounge. He stated he received two Crime Stoppers tips and a call from a field lieutenant naming the two suspects as responsible. He said Coach Hopkins at Fray ser High School gave him the name and

address of the defendant and Tavarsity Childers, who wa s called Trell. Sergeant Shemwell stated Tavarsity Childers, who was taken into custody, named the def endan t as his a ccomplice for the robbery of Zeke’s L

ounge on January 13, 1999. He said Childers told police the defendant used a ri fle, and

it could be

found in
a dumpster in the rear of

an apartment complex. He said Childers admitted he got his weapon, a .38 caliber revolver, from a fellow gang member. On cross-examination, Sergeant Shemwell testified he was not in t

he room where the

defenda nt made hi s stateme

nt to polic e, b ut was present at the interview and reviewed the defenda nt’s statement.

Officer D. H. Rowe of the Memphis Police Department testified that on January 17, 1999, he was called to 2605 North Watkins to investigate the contents of a dumpster in connection with
a homicide investigation. He stated he climbed inside the dumpster and found a r iflewrapped in an old rug. He said the rifle contained one live round. He said he photographed the rifle and tag ged the weapon and the round into evidence. On cross-e xamination, Officer Rowe reiterat ed his testimonythat he secured th e round f ound in the rifle. He said he did not search the immediate area and did not secure any

thing else from inside the dumpster. Special Agent Steve Scott of the Tennessee Bureau of I nvestigation (TBI) testified he was assigned to revie w evidence submitt ed to the T

BI r egard ing th e victim’ s homicide. He stated he examined a rifle, a .22 caliber bullet, a bullet fragment, and a shell casing. He stated t h e semiautomatic rifle was missing its magazinefollower , in which .22 calib er ammun

ition is pushed to form the spring pressure, but was in working order as a single-shot .22 rifle. He stated the trigger must be pulled with appr

oximately seven pounds of pressure in order for the gun to f ire. He stated it was his opinion that the .22 caliber cartridge ca se, he examined, had been fired from the rifle and “no other gun in the world.” He stated he knew the rifle fired the .22 case recove red from the scene, because the s hell and rifle have the same “mechanical f ingerprint.” He said he examined a bullet fragment from the vi ctim’s b ody and was una ble to conclusively match the f ragment to the gun. Becau se the fragment was so small, he stated he could not say that the fragment was from a bullet firedfrom the r

ifle, de spite it be

ing of th e same caliber as the bullet fired from the rifle. He stated he examined one unfired .22 caliber cartridge to determine whether the live cartridge wa s consistent withthe fired ammunition. He said he determined the unfired car tridge and fired ammunition were similarin shape andde sign, we re made by t he same c ompany , and wer e composed of the sa

me-5-

materia l. He also stated

the live c artridg e is consiste nt with the

two fire d ammunitio n compone nts that he exam ined. He sta ted he concl uded t he liv e cartr idge an d the s pent c artri dge had been together inside the rifle at one time. He stated that he attemptedto find any marking s present on the unfired cartri dge indicating it had been run through the action of the gun without having been fired, but he could not find any identify ing marks.

On cross-examination, Agent Scott reiterated hi s previo us testimony that he could not conclusi vely

state that the rifle fired the tip of the .22 bullet he examined. He stated he could not match the unfired cartridge to the rifle. He stated the .22 cartridge ca se found at the crime scene was fired from the rifle he examined and from that gun only . He said he could not say the bulle t came from the case, but he said the casing was from the s ame ammun ition manuf

acture r. He sa id the rif le could be up to thirty-three y

ears old, but was in working order. He stated that he did not perform any tests to examine the wear and tear on the trigger mechanism and did not know if the magazine follower was on the gun at the time of the crime. He said he did not know if the gun was in working order in semiautomatic mode at the time of the robbery

. Dr. O’Brie

n Cleary Smith, Sh elb y County

Medical Examiner, testified he conducted an autopsy of the victim. He stated the victim died as a result of a gunshot wound to his chest. He said it was his opinion the victim died as a result of the passage of one bullet throug h the vi ct im ’s bo dy. He said the bullet woul d have e ntered t he victim’ s body

and fra ctured a s it hit the r

ib bone. He said he photographed the victim’s wounds to thechest and a gra zing gu nshot wound to the victim’s arm. He said the bullet struck the right sideof his che st at fifty-five

inches above the heal and eight inches to the right of the mi dline. He said the bullet ente

red the victim’s he art, struck and fra ctured t he fifth rib on the victim’s right side, and bruised his right lung. He said the bullet we nt through the victim’s diaph ragm and injur

ed his live

r. He sa id the vic tim sustained inte rnal bleeding

as a res ult of his wounds. He said the inter nal blee ding wou ld have r esulted in the victim ’s windpip e filling with blood and blocking his airway s. He stated the victim sustainedcontusion s to his kne es as a r esult of falling to the ground.

The defense

offered no proof after the State re sted its case against the defendant. The jury returned an d announc ed th at they had re ached a verdict as to first degr ee felony murder and espec ially agg ravated robbery , but were unable to reach a verdict as to first degree premeditated murder. The trial court

accepted the jury ’s verdict of guilt y of first deg ree felony murder a nd guilty of es pe ci al ly a ggr av at ed ro bb er y an d d is mi ss ed th e j ur y.
At the sentencing hearing, the trial court imposed a sentence of life for the first deg ree felony murder convicti on, a life

sentenc e being

the only avail able sentenc e. The trial court applied enhancement

factor s (1), (8 ), (13), (16), and (20), a nd four mitigating

factor s in mak ing i ts sentencing determination for the especially aggravated robbe

ry conviction. The trial court imposed
a twenty-one- year se

ntence on the especially aggravated robbe

ry conviction, to be ser ved consecutively with the de fendant’s life sentence.-6- Analysis I. Sufficiency of the Evidence

The defenda

nt asser ts the evid

ence is i nsuffic ient to su

pport his convictions, because the Statefailed to prove be yond a rea sonable doubt his identity as the perpe trator of the crimes. The proper inquiry for this Court to review the defendant’s challenge to the suff iciency of the

evidence to support a

convicti on is wheth

er, cons idering

the evide

nce in a l

ight mo st favorabl e to the prosecution, any r

ational trier

of fact could have found the essential elements of the crime bey ond
a reasonable doubt. See Jackson v. Virg inia , 44 3 U. S. 307 , 99 S. Ct . 27 81, 61 L. Ed. 2d 560 (1979); Stat e v. Hall , 8 S.W.3d 593, 599 (Tenn. 1999). A guilty ver dict accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the prosecution. State v. Bl and , 95 8 S.W.2d 651 , 65 9 (T enn . 19 97) . In determining the sufficiency of the evidence, this Court does not reweigh or reevaluate the evidence. Stat e v. Ca bbage , 571 S.W.2d 8 32, 835 (T enn. 1978 ). This Courtmay not substitute its inferences for those drawn by the

tri er of fac t from circumstantial evidence. Liak

as v. State , 199 Tenn. 298 , 305 286 S.W. 2d 856, 859 (1956). I

n fact, t his Court is required to afford the State the strongest legitimate view of the evidence contained in the record, as well as all reasonable and legitimat e inferen ces which may

be drawn from the evidence. State v. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995) . A convic ti on may be base d entirely on circumstantial evidence where the facts ar e “so clearly

interwoven and connected that the finger of guilt is pointed unerringly

at the Defendant

and the Defendant alone.” State v. Smith , 868 S.W.2d 561, 569 (T enn. 1 993) ( quot ing State v. D uncan , 698 S.W.2d 63, 67 (Tenn. 1985)). Questions regarding credibility of the witnesses, t he weight to be given the evidenc e, and any factual issues raised b y the evidenc e are resolved by the trier of fact. See State v. Bland , 958 S.W.2 d 651, 65 9 (Tenn. 1997). A verdict of guilt removes the presumption of innocenc e from the defendant and replaces it with a presumption of guilt and, on a ppeal, th e defendant’s bu

rden is to demonstrate why the evidenc e is insuff

icient to s upport hisguilty verdict. Statev. Carruthers , 35 S.W.3d 516, 557- 58; State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).

The defendant was convicted of first deg ree felony

murder, in violation of Tennessee AnnotatedCode section 39-13-202. Our statute defines first degree murde r, in part, as “[a] killing of another committed

in the per

petratio n of or at

tempt t o perpetrate any

. . . robbery . . . .”

Tenn. Code Ann. § 39-13-202(a)(2 ). The Code further states “no culpable mental state is required . . . except the intent to commit the enumerated offenses or acts . . . .” Id. at (b). The death occurring under these circumstances must occur “in the perpetr ation of” the enumerated felony

. State v. Hinton , 42 S.W.3d 113, 1 19 ( Tenn. Crim. App. 2000). Proof of the intention to commit the underlying

felo ny and a t wha t poin t it exi sted is a question of fact to be decided by the jury afte

r consideration of all the facts and circumstances. Stat e v. Buggs , 995 S.W.2d 102, 106 (Tenn. 1999).

The defendant was convicted of the underly

ing fel ony

of espec ially

aggr avated r obbery , in violation of Tennessee Code Annotated section 39-13-402(a) . O ur Code def ines robbery a s “the intentional or knowing theft of property fr

om the person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a) . Especially ag gravated robbery is defined as robbery

“(1)-7-

[a]ccomplished with a deadly we apon; and (2) [w]here the vi ctim suff ers serious bodily injury .” Tenn. Code Ann. § 39-13-403(a).

Alth ough the defendant argues the evide nce presented is insufficient to justifya rational trier of fact in finding him guilty be

yond a rea sonable doubt, he fails to make specific arguments as to the insufficiency

of the evidence as it relates to his identi ty. The rec ord ref lects sev eral inst

ances in which the testimony establishes the def endant as the perpetrator of the crimes. A. Eyewitness Testim

ony
Ja cl yn Dunlap witnessed the robbery and testified to the identity of the perpetrators. Dunlap testified that she saw two men enter Zeke’s L ounge. She stated one of the men wore a ski mask and pointed a .22 rifle at the victim. She stated the other pe rpetra tor did not

wear a ski mask a

nd ran int o the bar screaming at the victim to hand over all of the mone y. She stated that

the perp etrator s would notleave even after the victim gave them the money from the cash drawer. She said the perpetrator, wearing the ski mask, pointed his rifle at the victim even after the victim gave them money

from the cash drawer. She stated she saw th e victim kn ock the r

ifle with h

is arm and

heard tw o gunsho ts. She stated the victim then fell on top of her, gasping for a ir. B. Physical Evidence

The victim died as a result of a gunshot wound from a .22 caliber weapon. I

n the defendant’s statement to police, he confessed to shooting a .22 rifle during his robbery of Z

eke’s Lounge. B ased upon information from the co-defendant, the police found a discard ed .22 rif le in a dum

pster. Th is ri fle was dire ctly

connec ted to the

robbery at Zek e’s Lounge a

fter TB I Ag ent S teve Scot t conclusi vely

match ed a .2 2 cartr idge case found at the crime scene with the discarded rifle found by police. Agent Sc ott

stated the cartridge case c ould have only bee n fired by that rif

le and no other gun in the world.
C. Defenda

nt’s Stat ement
The defendant confessed to committing the robbery , but was unsure as to whether his bullet hit the victim. In his statement to police, the defendant stated tha the and his accomplice staked out Zeke’s Loung e with the

intent to r

ob the vic tim. The defendant stated that he wore a ski mask as he entere d Zeke’s Lounge with his .22 rifle. In his statement, the defendant described how he shot at the victim and took the money as “poc ket change.” After viewing the evidence in the lig ht most favorable to the prosecution, we conclude the defendant has not met his burden of proving the evidence insufficient to sustain his convictions. The evidence is legally suff

icient for a jury

to have foundthe defendan t guilty of murde

r in the fi rst degree and the underly

ing felony

of especially

aggravated robbe

ry.-8-

II. Senten cing
Next, the defe

ndant con tends his tw enty -one-y

ear sentence fo r his especially a ggravated robbery convicti on is exces sive, due to the trial court’s misapplication of enhancement factors (1), (8), (13), and (16). The defendant also cha llenges the trial cour

t’s dec ision to run

his espec ially aggravated robbe

ry sentenc e consecutive to his life sentence for his felony murder conviction.

This Court’s review of the sentences imposed is de novo with a pre sumption of correctness. Tenn. Code Ann. § 40-35-401(d). A presumption in favor of the trial court is conditioned upon an affirmative showing

in the re cord tha

t the tria l judge c onsidere d the sent encin g principle s and all relevant facts and circumstances. State v. Pettus , 986 S.W.2d 5 40, 543 (T enn. 1999 ). If the tria l court fails tocomply

with these

principle s, there

is no pres umption of

correctness and

our revi ew is de novo. State v. Poo le , 945 S.W.2d 93, 96 (Tenn. 1997). It is this defendant’s burden to show that the sente nce is impr

oper. Te nn. Code A

nn. § 40-3 5-401(d) , Sentenc ing Comm’ n Comments.

If no enhancement or mitigating factors are to be considered for sentencing, the presumptive sentence for especially

aggravated robbe

ry, a Class A fe

lony, shall be the midpo int w ithin the applica ble range. Tenn. Code Ann. § 40-35-210(c ). The rang e of puni shment fo r espec ially aggravated

robbery is fifteen to twenty-five y

ears. Tenn. Code Ann. § 40-35-112(a)(1). The refore, the midpoint of the range for especially aggravated robbe

ry sans enha

ncement or

mitigating factors is twenty y

ears. If enha

ncement or

mitigating factors exist, a trial court should enhance the sentence within the r ange for enh ancement factors and then reduce the sentence within the range for the mitigating factor s. Tenn. Co de Ann. § 4 0-35-210 (e); State v. A rnett , 49 S.W.3d 250, 257 ( Ten n. 2001). The weight given to each f actor is left to the discretion of thetrial court, as long as the trial court complies with the purposes and principles set forth by the sentencing act and supported by the record. State v. Kelley , 34 S.W.3d 47 1, 479 (Te nn. Crim. A

pp. 2000) ; see Tenn. Code Ann. § 40-35- 210, Sentencing Comm’n Comments. Based upon the foregoing discussion, we conclude the trial court er red in se ntencing the defe ndant and is not entit

led to a pr

esumption

of corr ectness

. A. Misapplication of Enhancement Factor (1)

Th e trial court found that the defendant had a previous history of criminal convictions or criminal behavior

in addition to

those necessary

to establish the appropriate sentencing rang e. See Tenn. Code Ann. § 40-35-114(1) (Supp. 2001) (Amended 2002). At the time of trial, the def endant
was eighteen years oldand had an extensive history of c riminal behavior as a juvenile. The record reflec ts the trial court applied enhancement factor ( 1) based upon the defendant’s juveni le cour t record which was included in the presentenc ing report.

The defendant correctly

asserts the trial court

should have not

found enhancement factor (1) upon his juveni le record. In 1995, the legislature a mended Tennessee Code Annotated section 40- 35-114 by adding

enhanc ement fa

ctor (20 ), which

allows fo r enhanc ement of

a sentence if “[t] h e defendant was adjudicated to have committed a delinquent act or acts as a juvenile that wou ld constitute a felony if committed by an adult.” Te nn. Code Ann. § 40-35-40-35-114(20) (Supp. 2001)-9-

(Amended

2002). Our supreme court has held factors (1) and (20) are mutually exclusive in that factor (1) applies only to adult criminal conduct, as opposed to f actor (20), which ap

plies exclu sively to juvenile adjudications of delinquent acts. State v. Jackson , 60 S.W.3d 738, 742 (Ten n. 2001). The defenda

nt’s p resentence report lists several delinquent acts committed by the defenda nt that would have constituted felonies if committed by an adult. While the defe ndant’s r ecord su pports application of factor (20), his juvenile record should not have been used to apply e

nhancement (1). Therefore, the trial court correctly applied enhancement factor (20), but er red in its application of enhancement factor (1). B. Misapplication of Enhancement Factor (8)

The trial co urt applie d enhancement factor (8), which involves a de fendant’s “previous history of un willin gness to comply with the conditions of a sentence involving release in the community.” Tenn. Code Ann. § 40-35-114(8) (Supp. 2001) (Amende d 2002). T he reco rd reflects the trial court based its determinationto apply this factor on the f act the defendant was on supervised probation as a juvenile on two occasions, as noted in the presentence report. Our supreme c ourt has held that juvenile probation violations may be prope rl y consider

ed to determine a history of unwillingness to comply

with the c onditions o f relea se into the community. Jackson , 60 S.W.3d at 740. However, the presentence report d oes not de monstrate the defe ndant’s f ailure to comply with the conditions of

his probation. Moreover, the trial court did not base its decision to apply this factor
on any evidenc e to the contrary . If a defenda nt had adm

itted using

drugs d uring hi s probationary period, a trial co urt could support its application of enhancement factor (8). See Stat e v. Geo rge Blake K elly , 1998 Ten n. C rim . Ap p. LE XIS 1085, *35, No. 01C01- 9610-CC-0 0448 (Te nn. Crim. A pp., Oct. 13, 1998, at Nashville). The trial court did not base its application of fac tor (8) o n anything other than the defendant’s juven ile probatio n recor d. The defendant

argue s that mer

ely being on probation does not warrant the application of enhancement factor (8)

. We agree with the defendant and conclude the trial court err ed in its a

pplication of factor (8) in determining the defendant’s sentence. C. Misapplication of Enhancement Factor (13)

T he defendant argues the trial cour t misapplied factor (13) in its determinationof hi s senten ce. According to Tennessee Code Annotated section 40-35-114(13), a sentence may b e enhanced if “[t]he felony

was committed while on any of the following forms of release status if such release is from a prior felony conviction:” (A) Bail, if

the defe ndant is ul

timately convicte d of such p

rior fel ony ; (B) Parole; (C) Probation; (D) Work release; or (E) Anyoth er type of release into the community unde r the direct or

indirec t supervision of

th e d ep ar tm en t o f c or re ct io n o r l oc al go ve rn me nt al au th or it y.-10-

The record

reflec ts the State

did not know

if facto r (13) sh ould have

applied t o the def endant, and the tr ial cour t ultimatel

y based its application of

factor (13)(E) on the basis that the defenda nt was on “es cape sta

tus. ” The presentence report indicate s the defendant committed the crimes at issue while on pre-trial release for offe nses of which he had

not yet been c onvicted. The record is void of any evidenc e the def

endant vi olated a

ny t erms of h

is pre-tr ial rele ase. Although th e defendant had pending felony

charges aga

inst him, there was no proof of a conviction on any of the charg es. Therefore, we find enhance ment factor (13) was inapplicable to the defendant in this case. See Statev. Watson , 1999 Tenn. Crim. App. LEXI S 659, *12, No. 03C01-9809-CR-00325 (Tenn. Crim. App., July 9, 1999, at Knoxville). D. Misapplication of Enhancement Factor (16)

The tria l court a pplied fa ctor (16 ) in that “[t]he crime was committed under circumstances under which the potential for bodily injury to a victim was great,” Tenn. Code Ann. § 40-35-114(16) (Supp. 2001) (Amended 2002). The defendant correctly asserts the trial court misapplied this factor because the potential is inherent

in the cr ime of especially

aggravated robbe

ry. The record indicates that defense counsel objected to the trial cou rt’s applicat ion of factor (16), and the trial court responded to c ounsel’s objections by stating “ okay.” The record also reflects the trial court eventually applied f

actor (16), absent any

reasons for its finding.

Factor (16) specifically

requires the risk or

potential injury be to a victim . Tenn. Code Ann. § 40-35-11 4(16) (Su

pp. 2001) (Amende d 2002) (e mphasis a

dded). T his Court ha s held

serio us bodily injury is an essential eleme nt of especially a

ggravated robber

y, theref ore, factor (16) may

not be applied on the basis of great potential for bodily injury

to the victim of the offense. See State v. Nix , 922 S.W.2d 894, 903 (Tenn. Cr im. App. 1995). Our supreme court has held that factor ( 16) may not be based on the risk of injury to individuals other than the victim of the cri m e. State v. Imfe ld , 70 S.W.3d 698, 706 (Tenn. 2002 ). Theref ore, the trial cou rt erre d by

apply ing this
en ha nc em en t f ac to r t o t he de fe nd an t’ s s en te nc e for es pe ci al ly a ggr av at ed ro bb er y.
E. Consec

utive Sent

encing After apply

ing the aforementioned factors and other unconte sted enhancement factors, the trial court applied several mitigating factors before its final determination to sentence the defendant to a twenty-one -year

sentence, to run consecutively with his life sentence for his felony murder conviction. The def

endant a rgues t he tria l court erred in ordering him to serve this sentence
co ns ec ut iv el y, in that he should n ot receiv e dang erous of fender status. Th

e trial c ourt base d its imposition of consecutive sentencing upon criterion set forth in Tennessee CodeAnnotated section 40-35-115(b). The trial court determined the defendant to be an offender with an e xtensive criminal record. SeeTenn. Code Ann. § 40-35-115(b)(2). The trial court al so deter

mined the defenda nt to be a dangerous offender w hose behavior indicates little or no regard for human life

and no hesitation about committing a crime in w hich the risk to human life is high. See Tenn. Code Ann. § 40-35- 115(b)(4). Our supr

eme cour t has held a trial c ourt must

find that an extended sentence is necessary to protect the public

agains tfurther criminal conduct by the de fendant and that consecutive sentences-11-

reasona bly relate to the severity

of the offenses committed. State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995). The trial court utilized this exact language in determining that a consecutive sentence
was necessary

to protect the public from future criminal conduct by the defendant. We conclude the defendant has a lengthy

criminal history for someone his ag e. Finally, the de fendant robbed and shot
someone for no other reason than to have “pocket c hange.” These facts support the tria l court’s determination that the defendant is appropriately classified as a dangerous offe nder.
Conclusion

For the aforementioned reasons, we affirm t he convictions, but remove the presumption of
correctness due to the misapplication of four enhancement factors a nd remandfor a

new sentencing he ar in g o n t he es pe ci al ly a ggr av at ed ro bb er y co nv ic ti on on ly.

___________________________________ JOHN EVERETT WILL IAMS, JUDGE